First the European Union now the European Court of Human Right: A new target of British ‘Sovereignism Creep’

In a move to reach out to UKIP voters and its own backbenchers, the UK Conservative Party has announced its will to adopt its own British Bill of Rights and Responsibilities and transform the European Court of Human Rights (ECtHR) into an advisory body, a plan which is likely to lead to the UK’s withdrawal from European Convention on Human Rights (ECHR). After having reviewed the main tensions between Strasbourg and London, the article analyses the consequences such bold move could have on both the Council of Europe and the European Union before concluding that this state of play proceeds not from a eurosceptic trend but from a British ‘sovereignism creep’.

1. Last blow in the UKIP-Conservative duel: the ECtHR as collateral damage

It is no secret that the UK Conservative Party fears the prospect of the eurosceptic United Kingdom Independence Party (UKIP) jeopardising their chances of getting re-elected in 2015. This threat has become even more realistic as the UKIP have managed, as previously reported on this website, to win its first seat in the UK House of Commons, a seat previously held by a Member of the Conservative Party.

In a bid to put an end erosion of their support and partisans, the Tories have been reduced to spectacular actions in order to retain voters and prevent eurosceptic backbenchers from joining UKIP. On 1st October, at the Conservative Party Conference in Birmingham, Prime Minister David Cameron, instead of delivering an expected speech in which he would blame the European Union, he pointed his finger at another scapegoat, the European Court of Human Rights (ECtHR), when he said:

“It’s not just the European Union that needs sorting out – it’s the European Court of Human Rights. When that charter was written, in the aftermath of the Second World War, it set out the basic rights we should respect. But since then, interpretations of that charter have led to a whole lot of things that are frankly wrong. Rulings to stop us deporting suspected terrorists. The suggestion that you’ve got to apply the human rights convention even on the battlefields of Helmand. And now – they want to give prisoners the vote. I’m sorry, I just don’t agree. […] Let me put this very clearly: we do not require instruction on this from judges in Strasbourg. So at long last, with a Conservative government after the next election, this country will have a new British Bill of Rights, to be passed in our parliament, rooted in our values. And as for Labour’s Human Rights Act? We will scrap it, once and for all.”

This Human Rights Act obliges all British public institutions to abide by the European Convention on Human Rights (ECHR). The British jurisdictions are thus required to comply “as much as possible” with Strasbourg’s rulings. However, in case of incompatibility between the British law and a prescription from the ECHR British judges have to adopt a declaration of incompatibility and apply the British law. This in effect protects the sovereignty of the law passed by the Westminster Parliament. However, a few days after the Conference, Conservative Justice Minister Chris Grayling announced a plan to implement Cameron’s promise to scrap the Human Rights Act. The Conservatives are thus partisans of a strong dualist conception of the international law, meaning they grant a judicial validity to international rules only after their transposition in national legislation. While being closer to the US position, this conception is in opposition with the monist systems applied in the continental countries, which claim an international norm being directly valid in the national legislation without any transposition. This move that could be qualified as “strictly politics – not law” has pleased eurosceptics as expressed by the Daily Mail’s jubilation when publishing:

“End of human rights farce: In a triumphant week for British values, Tories unveil plans to give Parliament and judges power to IGNORE the European Court and its crazy decisions”

Indeed, if re-elected in 2015, Conservatives have promised to restore the allegedly lost supremacy of the British Parliament over the jurisdiction of the European Court of Human Rights. To this end they have unveiled their plan for a kind of ‘opt-out’ making the ECtHR judgments only advisory instead of binding, which would enable the UK’s judges to simply ignore Strasbourg’s rulings. In replacement of the Human Right Act, their intention would be to adopt a British Bill of Rights and Responsibilities. In addition, the Tories’ strategy would seek to prevent the use of ECHR Article 8, which stipulates the right to a ‘family life’, by illegal immigrants in order to avoid their deportation. Conservatives wish as well to curtail the application of the Human Rights to the UK territory only, to avoid British soldiers in mission facing pursuits for their actions abroad.

But the most shocking element was yet to be announced: the Tories want to go well beyond these simple measures since their plan has also threatened to resign and ‘walk away’ from the ECHR:

“In the event that we are unable to reach that agreement [meaning the Council of Europe recognising that the Conservatives approach is a legitimate way of applying the Convention], the UK would be left with no alternative but to withdraw from the European Convention on Human Rights.”

These announcements sparkled vivid reactions as even the Head of the Council of Europe told the Financial times that “Ministers calling for Britain to abandon the European human rights framework are encouraging Russia in its illegal action in Crimea”. Meanwhile, the other political parties have also reacted to these developments. The Liberal Democrats, junior partner of the Conservatives in the governing coalition have previously repeatedly blocked the Tories in their attempts “to pull Britain out”. The LibDems Junior justice minister, Simon Hughes, declared that “the Conservatives don’t care about the rights of British citizens – they care about losing to UKIP. These plans make no sense: you can’t protect the human rights of Brits and pull out of the system that protects them” and their leader, Nick Clegg, has claimed “Trashing human rights basically… to cater for, or to go after, UKIP votes is a legally illiterate thing to do and is not in keeping with fine British tradition” and emphasised he would not be part of a government committed to leaving the ECHR. On their end, the Labour have reacted via the voice of their Shadow Justice Secretary, Sadiq Khan, who said to the Guardian:

“I’ve lost count of how many times the Tories have promised a British Bill of Rights. But still they can’t spell out how it would differ from the Human Rights Act. If it is different, Cameron needs to be honest with the British people and say which rights he wants to strip from them – the right to a fair trial, the right to life or perhaps the right to privacy or freedom of expression?”

2. How did we get there? Criticisms and raising tensions between the UK and the ECtHR

Everything was fine at first: As Nicolas Bratza underlines, “British parliamentarians and lawyers played a key role in [the Council of Europe’s] conception and its drafting of the ECHR”. The United Kingdom was a founding member of the Council of Europe (CoE) and was one of the first to sign the ECHR. However, in the recent years, a number of cases have tensed the relations between Strasbourg and London. The first real bone of contention came in 2005 with the Hirst v. UK ruling in which the ECtHR condemned the British Law denying prisoners their voting rights and gave the British government 6 months to remedy the situation. The state of affairs has been aggravated even further by the famous Abu Qatada v. UK ruling (2012) where the Court decided against the deportation of the preacher Abu Qatada, linked to Al-Quaida, to Jordan due to the risk of being tortured in this country. At that time, the British government was so upset it evocated the option of a “temporary withdraw” from the Charter in order to proceed with the extradition. This kind of heated situations is not unique and can be found in a series of rulings from the ECtHR that proved to be highly unpopular in the United-Kingdom and among eurosceptics.

Along these cases, some structural criticisms have also been addressed to the Court in the recent years: the backlog of cases with more than 150,000 pending cases, the interpretation of the ECHR as a ‘living instrument’ and the alleged interference with domestic politics leading to impose the Court’s supranational views on the national courts and authorities. Concerning the backlog, it originates from the expansion of the Council of Europe to the countries of Central and Eastern Europe after the fall of the Berlin Wall. From 23 Members it has grown to 47 members today. As a result of this expansion, the number of applications and judgments skyrocketed whilst the ECHR contributed to establishing stronger Human Rights Standards in the whole region. To tackle this situation, the Council of Europe has made great efforts to reform the Court, notably through the adoption of the Protocol n°14 that has introduced new dispositions designed to maximise the relatively scare resources of the Court by rationalising its procedures.

As far as the “living interpretation” is concerned, this concept is not the own creation of the ECtHR as Paul Harvey rightfully points out: this principle is “firmly established in the constitutional jurisprudence of virtually every common law country in the world, we must give up the idea that it is a self-aggrandising invention of the Strasbourg Court”. Thus, the claim that the Convention itself is totally fine but that it is the interpretation by the Court that is problematic as a “subjective and anti-democratic instrument” does not stand.

Finally, the alleged undue influence of the Court on national matters would imply first that the Court spends most of its time seeking to interfere with British politics, using every opportunity to enter the national debate – a story that is clearly not evident from analysis of all cases. According to the ECtHR statistics (1,2), in the period 1959-2010, the Court only took up 443 cases of judgments. This represents only 3% of the application received by the Court, which means the ECtHR has struck out as inadmissible 97% of the applications (14 029 cases). Among those 3 % of applications, only 61% of the cases have led to the conclusion of a violation of the Charter (271 cases) while at the same time in 19% of its rulings (86 cases), the Court has declared there was no violation. We are indeed far away from a systematic attempt to exert undue influence over national decision-making in a meaningful way.

Second, this argument would also imply that the Common law tradition is so flawless it could not benefit from a judicial dialogue with other legal traditions. However, one has to acknowledge the positive influence the European Court of Human Rights can have on the United Kingdom when ruling on some landmark cases. As Nicolas Bratza, a British lawyer and outgoing president of the European Court of Human Rights reminds:

“Few would […] deny that a journalist’s right to protect his sources is a cornerstone of a free press. Nor does it seems strange in 2011 to suggest that child perpetrators, even of the most heinous offences, like the Jamie Bulger killers, should not be tried in an adult court. Rulings on the legal recognition of transsexuals and the lifting of the ban on homosexuals in the armed forces meanwhile, are surely examples of where domestic UK law was lagging behind societal changes and was brought up to date as a direct consequence of the court’s judgments […] More recently, the finding that the indefinite retention of DNA samples of persons never convicted of an offence violated the right to private life, was widely applauded in British political and legal circles.”

3. How the UK could be leading by example: the Risk of Contagion

The United Kingdom’s reticence to accept the rulings of the European Court of Human Rights is not unique in Europe although the intensity of its opposition and the tension in its relation with the Court have so far not been matched by any country. Of course other countries also have their own sensitive cases, such as the impact of the Salduz v. Turkey ruling on the judicial system of Belgium, the independence of the prosecutor in France, or the case Hudoc vs. Slovakia on the forced sterilisation of Roma women.

The real problem behind this controversy lies in the risk to the entire organisation posed by the threat of leaving the ECHR, especially from a founding member of the Council of Europe. Although such criticisms of the Court coming from western countries might have little impact back home, their reception and impact in countries such as Russia are much more amplified and powerful. As Court President Nicholas Bratza put it, “there is a risk of this attitude in the UK to judgements of the court negatively impacting on other states and complaints being made of double standards. This could result in a wider refusal to implement ECtHR judgements across the Council of Europe.” An early sign of this potential contagion might already be found in the bill proposed by Alexander Torshin, then acting speaker of the upper house of the Russian parliament, to reaffirm the supremacy of Russian Courts over the ECtHR, which he explained in the following way:

“I think that, with its new practices, the Strasbourg Court, departing from the bounds of the European Convention, has moved into the area of the state sovereignty of Russia, and is trying to dictate to the national lawmaker which legal acts it must adopt, which thus violates the principle of the superiority of the Constitution of the Russian Federation in the legal system of our state.”

This is exactly what Sadiq Khan was referring to when writing in the New Statesman:

“Siren voices either don’t believe our membership makes a difference to human rights in other countries, or aren’t interested in how we can raise the standards of human rights abroad. This is a grave mistake, and ignores how influential our moral standing can be over other countries. Reinforcing this, I heard from speaking with judges from other countries a very genuine fear that if the UK walked away, there would be a backsliding on human rights in those countries with already challenging records in this area.”

4. The triangle United-Kingdom, Council of Europe and European Union

One might think that this issue does not have anything to do with the European Union but the repercussions could actually be far reaching for it too. As pointed out by Roseline Letteron, although the CoE and the EU are two distinct organisations, questioning the ECHR can be seen in the eyes of the British people and mainly for eurosceptics as the first step towards questioning the European Union in light of the upcoming referendum on the British Membership to the European Union, promised by the Conservatives to take place in 2017.

The eventuality of the UK withdrawing from the ECHR might be even more tricky as the adhesion to this Convention is one of the conditions for joining the EU as mentioned in the 1993 Copenhagen criteria. If this withdrawal together with the adoption of the new British Bill of Rights and Responsibilities were to happen before the 2017 EU referendum, their impact could complicate any negotiation between London and Brussels on the terms of the British membership since to be an EU Member, States are required to abide by the ECHR. Moreover, the British Bill of Rights and Responsibilities might even contradict the EU Charter of Fundamental Rights or any Human Rights policy advocated by the EU, a potential backlash that the Tories are fully aware of:

“The Conservatives are clear that our relationship with the EU will be renegotiated in the next parliament, and if there is anything in that relationship which encroaches upon our new human rights framework, then that is something it will be open for us to address as part of the renegotiation.”

The European Union itself is ardently trying to access to the European Convention on Human Rights in order to beef up the protection of individuals’ rights, to foster a coherent Europe-wide system of human-rights protection and reinforce legal certainty. Since the Lisbon Treaty has entered into force, the Union disposes of a legal basis for joining the ECHR and has indeed already started to negotiate its accession. What is ironic, however, is that the legal basis (art. 218 TFEU, §8) provides that:

“The Council shall also act unanimously for the agreement on accession of the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms; the decision concluding this agreement shall enter into force after it has been approved by the Member States in accordance with their respective constitutional requirements.”

In summary, the consent of the United-Kingdom would be required to let the EU accede the ECHR while at the same time the UK itself is trying to leave the very same Charter. Being aware of the leverage at their disposal the Conservatives have already warned they would use it to protect their interests:

“We are mindful there may be legal implications for our approach one the EU accedes to the ECHR. We will therefore ensure this is reflected in the rules that will govern the EU’s interaction with the Court. The EU’s application to join the Convention requires the unanimous agreement of all member states, which will allow us to ensure that the UK’s new human rights framework is respected.”

Reacting to this issue, the European Commission has reminded the existence of the explicit obligation made to Member States to abide by the ECHR and the EU Charter of Fundamental Rights under the EU treaty rules. In case a Tory government were to scrap it, the European Commission might be obliged to resort to the Nuclear option: the suspension of the UK’s voting rights in the European Council as referred to in Article 7 of the Treaty on European Union. However, this option remains highly hypothetical since as one might have noticed, notably in the case of the repeated breach of European Values by Hungary, it is a very sensitive issue and there is no consensus on its use at the European level. As the eurosecptic think thank Open Europe claims, “making such a legal argument for a values breach, should the UK withdraw, would be difficult because there is a commitment to enshrine the convention in Britain’s domestic law.”

5. More than just the EU or the ECHR: UK ‘sovereignism creep’

Ultimately and following Nikolaj Nielsen the relation between the UK and the ECtHR can only develop according to four possibilities:

The UK does not withdraw from the ECHR and remains a member of the Council of Europe

The UK follows the example of Greece under the dictatorship of the Colonels and decides to withdraw from the CoE, becoming the second country after Belarus to not be part of the continent-wide organisation

The CoE does accept to make an exception for the UK, which will open the Pandora Box with the remaining 46 other states claiming similar privileges.

The CoE accepts the principle of the ECHR’s rulings becoming only advisory, which would completely sideline the ECtHR

As this article demonstrates, the eurosceptic rejection of the European Union runs much more deeply and is not only directed at the EU: one should not forget that the UK has shown the same behaviour towards the European Court of Human Rights. In both cases, the United Kingdom seeks for opt-outs, instrumentalises the principle of subsidiarity to defend a sort of ‘national exception’ and refuses to be treated as any other member being part of the same international organisations. Today’s eurosceptic UK should not even be qualified as eurosceptic since it is not the European character of their opposition that is at the forefront but rather their blatant refusal to consider binding supranational institutions as legitimate tools for cooperation. Instead they prefer to see them as an infringement on their national sovereignty. So when the UK denounces the ECtHR rulings as a betrayal of the original ECHR Convention, the problem does not reside in the guarantees the Court grants to the individuals seeking protection from the States violating their fundamental rights. The problem rather lies in the fact the nation which gave us the Habeas Corpus is not able to see further than its reticence to everything foreign-related, a situation which certainly cannot be solved with judicial reforms or Membership renegotiations since it does not target the root of the issue: the British ‘sovereignism creep’ that pushes the country to reject any attempt of meaningful cooperation at the international level, be it the European Union or the European Court of Human Rights.

1 Comment

The problem with the ECHR is that it does not protects the rights of the very people it was supposed to. It seems to protect the rights of the few over the rights of the many.

If both parties are entitled to human rights who wins, the victim or the perpetrator.

The problem with the EU is it believes that before it was invented we all lived in caves and had never had any meaningful for or government, well we did and indeed far better than the EU in many circumstances.